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The Near Legal Future for Jared Loughner

Because Representative Giffords and Judge John Roll are federal people, federal crimes were committed and the FBI has jurisdiction to enter the case. I’ve done a lot of federal criminal defense work, so this is what’s going to happen.

The U.S. Attorney’s Office will file a complaint in the United States District Court for the District of Arizona charging Loughner with at least one felony offense. The Complaint will have an affidavit attached to it, probably drafted by a U.S. Attorney, setting forth facts that the investigation has turned up. Do not expect that the affidavit will contain all of the facts that are known. The Government has to assert sufficient facts to convince a United States Magistrate Judge that there is probable to believe that the defendant committed the crime(s) charged in the Complaint. The affidavit will be drafted with that in mind.

The main location for the district court is in Phoenix, but there is a branch in Tucson. There is an issue in this case regarding the possibility of prejudice against the defendant, since everyone in the federal courthouse in Tucson and probably the other federal courthouses in Arizona know him well. There may be a motion to change venue that probably is a good idea, so be aware of that. They may bring in a federal judge from some other district in the country, probably a Senior Judge (i.e., semi-retired).

The hearing probably will be scheduled for late Monday morning or sometime in the afternoon to permit Loughner and his counsel sufficient time to review the Complaint and Affidavit. I suspect Loughner is unable to retain counsel, therefore, counsel will be appointed to represent him. That will probably be the Federal Public Defender Office in Tucson and they probably will assign two of their lawyers to represent him. . . .

The hearing tomorrow is called an Initial Appearance. Copies of the Complaint & Affidavit will be provided to Loughner and his attorney to review before the hearing starts. The Magistrate Judge will advise Loughner of his legal rights and hear an argument from defense counsel that the affidavit fails to establish probable cause, assuming they want to make an argument, which is unlikely.

The Government also will have prepared a Motion for Detention (bail hearing) and to set a Preliminary Hearing, that probably will be scheduled at the end of the week. Expect Loughner to be detained without bail pending that hearing and that will be that. Probably not more than 10 or 15 minutes.

Prior to the Preliminary Hearing, a U.S. Probation Officer, Pretrial-Release Division, will have to interview Loughner and prepare a report for the court to consider regarding eligibility for pretrial release. Expect the report to recommend detention without bail due to dangerousness and flight risk.

At the Preliminary Hearing, the Government will call a witness, probably the FBI agent who signed the affidavit, to answer a short and sweet set of questions to establish probable cause. Defense counsel will cross-examine, basically to discover as much information as possible about the Government’s case. There probably won’t be any argument about probable cause and the Magistrate Judge will find probable cause. Then the Magistrate Judge will consider the issue of detention. The defense may make a pitch for pretrial release, but don’t expect it because it won’t be granted in a case like this. Loughner will be detained without bail and court “will be in recess.”

During the following week or possibly the week after, depending on when the Grand Jury next meets, the Government will call witnesses and present its case to the Grand Jury. The Grand Jury meets in secret. No judge is present. Neither the defendant nor his counsel is present. Hearsay evidence is admissible. After presenting whatever evidence it decides to present, the Government will ask the Grand Jury to hand down (issue) the proposed indictment. Expect the Grand Jury to hand down the indictment.

After that happens, an arraignment will be scheduled. Expect Loughner to plead not-guilty, because regardless of guilt or innocence, all defendants plead not-guilty at their arraignments. The Magistrate Judge will set a trial date and a deadline to file pretrial motions. The detention order will be continued pending the outcome of the case and the hearing will conclude. Expect that trial date to be continued.

Expect the defense to arrange to have Loughner evaluated by one or more mental health professionals at some point.

[Ed. note: The text of the federal charges can be found at this link. Mason’s previous post on grand juries can be found at this link.]

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Frederick Leatherman

Frederick Leatherman

I am a former law professor and felony criminal defense lawyer who practiced in state and federal courts for 30 years specializing in death penalty cases, forensics, and drug cases.

I taught criminal law, criminal procedure, law and forensics, and trial advocacy for three years after retiring from my law practice.

I also co-founded Innocence Project Northwest (IPNW) at the University of Washington School of Law in Seattle and recruited 40 lawyers who agreed to work pro bono, assisted by law students, representing 17 innocent men and women wrongfully convicted of sexually abusing their children in the notorious Wenatchee Sex Ring witch-hunt prosecutions during the mid 90s. All 17 were freed from imprisonment.